| People v Jackson |
| 2021 NY Slip Op 05212 [198 AD3d 1317] |
| October 1, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Wilbert A. Jackson, II, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Christopher S. Ciaccio, J.),rendered September 28, 2016. The judgment convicted defendant upon a plea of guiltyof criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that his waiver of the right to appeal is invalid. We reject thatcontention. Although language in the written waiver form arguably portrays the waiveras an absolute bar to the taking of an appeal (see generally People v Thomas, 34 NY3d 545, 564-567[2019], cert denied 589 US —, 140 S Ct 2634 [2020]; People v Kubiak, 195 AD3d1451, 1451 [4th Dept 2021], lv denied 37 NY3d 993 [2021]), a trial court's"oral colloquy with defendant . . . can cure incorrect language in the writtenwaiver form" (Thomas, 34 NY3d at 563). Here, County Court informeddefendant during the oral colloquy that he was giving up "most claims of error," with theexception of those "errors that survive the waiver of the right to appeal," including, forexample, whether defendant's plea is voluntary, whether he was denied effectiveassistance of counsel, and whether he was competent to understand the legal proceedingsand to stand trial (see NY Model Colloquies, Waiver of Right to Appeal,https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf; cf. People vMurray-Adams, 195 AD3d 1450, 1450 [4th Dept 2021]; Kubiak, 195AD3d at 1451). Moreover, the court specifically informed defendant that a notice ofappeal could and would be filed (see NY Model Colloquies, Waiver of Right toAppeal,https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf). Given that language in the court's oral colloquy, we conclude that the recordestablishes that defendant " 'comprehended the nature of the waiver of appellaterights' " (Thomas, 34 NY3d at 565-566), and thus the "appeal waiver wasknowingly and voluntarily entered and sufficiently comprehensive to cover [defendant's]appellate challenge to the suppression ruling—without any need for expressmention of it during the waiver colloquy" (id. at 565). Present—Whalen,P.J., Centra, NeMoyer, Troutman and Winslow, JJ.